Citation Nr: 0524705
Decision Date: 09/12/05 Archive Date: 09/21/05
DOCKET NO. 03-18381A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased initial rating for Type II
diabetes mellitus, currently rated 20 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Simone C. Krembs, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1965 to April
1975.
This matter comes before the Board of Veterans' Appeals
(Board) from a March 2002 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana, which awarded service connection and a 20 percent
rating for diabetes mellitus, effective July 9, 2001.
FINDINGS OF FACT
1. All requisite notices and assistance to the veteran have
been provided, and all evidence necessary for an equitable
disposition of the claim has been obtained.
2. The veteran's service-connected diabetes mellitus is
manifested by the need for daily insulin injections and
dietary restrictions, but his physical activity has not been
clinically regulated.
CONCLUSION OF LAW
The criteria for a rating higher than 20 percent for diabetes
mellitus have not been met since July 9, 2001. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities. Separate
diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When rating a
service-connected disability, the entire history must be
borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in
this case the veteran timely appealed the rating initially
assigned for this disability on the original grant of service
connection. The Board must therefore consider entitlement to
"staged ratings" for different degrees of disability in the
relevant time periods, that is, since the original grant of
service connection. See Fenderson v. West, 12 Vet. App. 119,
125-26 (1999).
Ratings for service-connected disabilities are determined by
comparing the veteran's symptoms with criteria listed in VA's
Schedule for Rating Disabilities (hereinafter "Rating
Schedule"), which is based, as far as practically can be
determined, on average impairment in earning capacity.
Separate diagnostic codes identify the various disabilities.
See 38 C.F.R. Part 4. Where there is a question as to which
of two evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
A 20 percent rating is warranted for diabetes mellitus
requiring insulin and a restricted diet, or an oral
hypoglycemic agent and a restricted diet. A 40 percent
rating is warranted for diabetes mellitus requiring insulin,
restricted diet, and regulation of activities. A 60 percent
rating is warranted for diabetes mellitus requiring insulin,
restricted diet, and regulation of activities with episodes
of ketoacidosis or hypoglycemic reactions requiring one or
two hospitalizations per year or twice a month visits to a
diabetic care provider, plus complications that would not be
compensable if separately evaluated. A 100 percent rating is
warranted for diabetes mellitus requiring more than one daily
injection of insulin, restricted diet, and regulation of
activities (avoidance of strenuous occupational and
recreational activities) with episodes of ketoacidosis or
hypoglycemic reactions requiring at least three
hospitalizations per year or weekly visits to a diabetic care
provider, plus either progressive loss of weight and strength
or complications that would be compensable if separately
evaluated. 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913
(2004).
Complications of diabetes are evaluated separately unless
they are part of the criteria used to support a 100 percent
rating. Noncompensable complications are deemed part of the
diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913,
Note (1) (2004).
The record shows that the veteran has also established
service connection for hypertension and renal insufficiency
as diabetes-related conditions. However, he has not appealed
the evaluations assigned to these disabilities. Thus, the
only issue over which the Board has jurisdiction is the
rating for diabetes mellitus.
The veteran asserts that a rating greater than 20 percent is
warranted under DC 7913 because his diabetes mellitus is
worse than the assigned rating provides.
The veteran claims to have been diagnosed with diabetes
mellitus sometime in the year 1995. A record of his initial
diagnosis is not in the claims folder. It appears that, in
effort to manage his diabetes, the veteran has been advised
to follow a restricted diet since at least February 2001,
when he was advised to stop using salt. VA treatment records
dated in June 2001 show that he was counseled on appropriate
diet. March 2002 records indicate that the veteran was
advised to follow a vegetarian diet with three meals per week
of chicken or fish. Later that month, he was noted to be
following his diet as ordered. In a statement submitted in
April 2002, the veteran reported that his physician had
advised him to follow a 1200-calorie diet. A May 2002 report
of VA examination notes that the veteran was on a restricted
diabetic diet, and had lost approximately 9 pounds since
March 2002. Accordingly, the Board finds that he has been
advised to follow a restricted diet in effort to manage his
diabetes.
The veteran takes oral hypoglycemic agents to control his
diabetes mellitus. He was additionally prescribed insulin
injections in April 2001, for tighter control of his
condition. His insulin dosages have increased periodically
since the initial prescription. Thus, he currently takes
both oral medication and insulin as a part of his control
regimen.
In addressing the third criterion for a higher rating, there
is no evidence in this case that the veteran has been
prescribed or advised to avoid strenuous occupational and
recreational activities. See 61 Fed. Reg. 20,440, 20,446
(May 7, 1996) (defining "regulation of activities," as used
by VA in DC 7913). Indeed, it appears that the veteran was
encouraged and counseled on the importance of exercise on
numerous occasions, as is reflected in VA treatment records
dated in June 2001, and in February and March 2002. Further,
on VA examination in May 2002, the examiner noted that there
were "no functional restrictions per se because of the
diabetes," but stated that the veteran's ability to walk was
hampered as a result of his low back condition. In order to
meet a higher rating of 40 percent, the veteran must have
been told that he should avoid any strenuous occupational or
recreational activities. See 38 C.F.R. § 4.119, DC 7913.
See 38 C.F.R. § 4.119, DC 7913 (emphasis added).
The veteran has stated, during treatment and in written
personal statements, that his diabetes disability makes him
less active than he used to be, more easily fatigued, and
makes him generally feel tired and weak. In an outpatient
treatment record dated in April 2002, the veteran
additionally attributed his inability to exercise to his
service-connected back pain. The Board notes that the
evidence shows that the veteran's activity level is indeed
low. However, the level of the veteran's physical activity
is not the appropriate standard by which to judge whether his
activities are regulated. While the veteran attributes his
low level of activity to his diabetes, he, as a layperson, is
not competent to provide a medical opinion as to the severity
of his diabetes disability, including whether he is or is not
capable of, or must avoid, strenuous occupational and
recreational activities, due to diabetes. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). The available evidence
does not indicate that the veteran has been prescribed or
advised to avoid strenuous occupational and recreational
activities, as is required in order to merit a higher rating
of 40 percent.
While the veteran here has been prescribed a restricted diet
and insulin injections in effort to control his diabetes, he
has not been prescribed limited physical activity or advised
to avoid recreational activities. The veteran therefore does
not meet the criteria for a higher rating of 40 percent.
38 C.F.R. § 4.119, DC 7913. As the preponderance of the
evidence is against the claim for a higher rating, the
"benefit-of-the-doubt" rule does not apply, and the claim
must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert
v. Derwinski, 1 Vet. App. 49, 50 (1990).
The Board finds that, since the effective date of service
connection, there were no distinct periods of time during
which the veteran's diabetes mellitus was more than 20
percent disabling. He is accordingly not entitled to receive
a "staged" rating. Fenderson, supra.
Duties to Notify and Assist the Appellant
The Board has also considered whether VA has satisfied all
duties to notify and assist the claimant. 38 U.S.C.A.
§§ 5103 & 5107 (West 2002) and 38 C.F.R. § 3.159 (2004). The
provisions of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) apply to cases pending before VA on November 9,
2000, even if the initial decision was issued before that
date. VA must give notice to a claimant in accordance with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) before
issuance of an initial unfavorable decision. Upon receipt of
a complete or substantially complete application, VA must
notify the claimant and any representative of any information
and any medical or lay evidence not previously provided to VA
that is necessary to substantiate the claim; this notice
requires VA to indicate which portion of that information and
evidence is to be provided by the claimant and which portion
VA will attempt to obtain on the claimant's behalf.
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The
notice must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112
(2004).
Here, the initial unfavorable decision was in March 2002.
The notices to the appellant informed him of the bases for
the relevant decisions, what types of evidence would be
needed, and how the evidence would be secured. The RO sent
the appellant correspondence in January 2002; a statement of
the case in March 2003; and a supplemental statement of the
case in September 2003. The statement of the case contained
the text of 38 C.F.R. § 3.159. There was no harm to the
appellant, as VA made all efforts to notify and to assist him
with regard to the evidence obtained, the evidence needed,
the responsibilities of the parties in obtaining the
evidence, and the more general notice of the need for any
evidence in the appellant's possession. Any defect with
regard to the timing and content of the notices to the
appellant was harmless because of the thorough and
informative notices provided throughout the adjudication of
the claim. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005). Thus, VA has satisfied its duty to notify the
appellant.
In addition, VA has obtained all relevant evidence identified
by the appellant. Thus, VA has complied with all duties to
assist the appellant in securing relevant evidence.
ORDER
The claim for an increased initial rating for diabetes
mellitus is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs